<PAGE> 1
The Registrant requests that the Registration Statement become effective
immediately upon filing pursuant to Securities Act Rule 462.
As filed with the Securities and Exchange Commission on May 23, 1995.
No.__________________
============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
REXON INCORPORATED
(Exact Name of Issuer as Specified in its Charter)
<TABLE>
<S> <C>
Delaware 95-4317481
------------------------------- ----------------------------------
(State or other jurisdiction of I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
One Progress Plaza, Suite 2110
St. Petersburg, Florida 33701
---------------------------------------
(Address of principal executive office)
1992 STOCK OPTION PLAN
(Full Title of the Plan)
Robert C. Genesi, Chairman of the Board
Rexon Incorporated
One Progress Plaza, Suite 2110
St. Petersburg, Florida 33701
(Name and Address of Agent for Service)
(813) 896-9609
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Kriston D. Qualls, Esq.
Graven Perry Block Brody & Qualls
523 West Sixth Street, Suite 1130
Los Angeles, California 90014
(213) 680-9770
============================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share Price Registration Fee
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 580,500 sh(2) $ NA (2) $ N/A (2) $ 0 (2)
99,655 sh(3) $ 4.37(3) $ 435,990(3) $ 150.34(3)
600,345 sh(4) $ 5.16(4) $3,097,780(4) $1,068.20(4)
------- ---------- ---------
1,280,500 sh $3,533,770 $1,218.54
--------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus, in accordance with Rule 416(a), such indeterminate number of
shares as may become subject to options under the 1992 Stock Option
Plan (the "Plan") as a result of the adjustment provisions therein.
(2) Such shares have been previously registered and a registration fee
has been paid.
(3) The registration fee for 99,655 shares of Common Stock issuable upon
exercise of options which may be granted in the future was estimated
solely for the purpose of determining the amount of the registration
fee, based upon the last sale price of Registrant's Common Stock of $4
3/8 on the NASDAQ National Market System on May 17, 1995.
(4) The registration fee for 600,345 shares of Common Stock issuable upon
exercise of outstanding options under the Plan was calculated pursuant
to Rule 457(h), using the prices at which such options may be
exercised.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the 1992 Stock Option Plan.
============================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*.
Item 2. Registrant Information and Employee Plan Annual Information*.
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I
of Form S-8.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Registrant with the Securities and
Exchange Commission are incorporated by reference in the Registration
Statement:
(1) Registrant's Report on Form 10-K for its fiscal year ended
October 2, 1994;
(2) Registrant's Quarterly Reports on Form 10-Q for the quarter
ended January 1, 1995 and April 2, 1995;
(3) Registrant's Proxy Statement, dated January 24, 1995,
concerning the 1995 Annual Meeting of Stockholders held March
16, 1995.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Counsel for Registrant, Graven Perry Block Brody & Qualls, A
Professional Corporation, has rendered an opinion to the effect that the
Registrant's shares of Common Stock covered by this Registration Statement will
be duly and validly issued, fully paid and non-assessable upon issuance.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Company provide for the indemnification of
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law.
Section 145 of the Delaware General Corporation Law authorizes
indemnification when a person is made a party to any proceeding by reason of
the fact that such person is or was a director, officer, employee or agent of
the corporation, or is or was so serving at the request of the corporation in
such capacity for another corporation, and if such person acted in good faith
and in a manner reasonably believed to be in, or not opposed to, the best
interest
3
<PAGE> 4
of the corporation. With respect to any criminal proceeding, such person must
have had no reasonable cause to believe the conduct was unlawful. If it is
determined that the conduct of such person meets these standards, such person
may be indemnified for expenses incurred and amounts paid in such proceedings
if actually and reasonably incurred in connection therewith.
If such a proceeding is brought by or on behalf of the corporation
(i.e., a derivative suit), such person may be indemnified against expenses
actually and reasonably believed to be in, or not opposed to, the best
interests of the corporation. There can be no indemnification with respect to
any matter as to which such person is adjudged to be liable to the corporation
for negligence or misconduct in the performance of his or her duty; however, a
court may, even in such case, allow indemnification of such expenses as the
court deems proper. Where such person is successful in any such proceeding, he
or she is entitled to be indemnified against expenses actually and reasonable
incurred by him or her. In all other cases, indemnification is made by the
corporation upon determination by it that indemnification of such person is
proper because such person has met the applicable standard of conduct.
The Delaware General Corporation Law permits a Delaware corporation to
include in its Certificate of Incorporation a provision eliminating or limiting
the liability of directors for monetary damages arising from breaches of their
fiduciary duty. The only limitations imposed under the statute are that the
provisions may not eliminate or limit a director's liability (i) for any breach
of the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for any transaction from which a director
derived an improper personal benefit, or (iv) for the payment of unlawful
dividends, stock purchases or redemptions. The Company's Certificate of
Incorporation contains a provision eliminating the liability of the Company's
directors for breaches of their fiduciary duty, subject to the limitations
imposed by statute as described above. The provisions do not limit or
otherwise affect the personal liability of a director for violation of Federal
Securities Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
<PAGE> 5
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this Registration
Statement:
4.1 1992 Stock Option Plan.
4.2 Amendment to 1992 Stock Option Plan.
5.1 Opinion of Graven Perry Block Brody & Qualls.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Graven Perry Block Brody & Qualls (included in
Option of Graven Perry Block Brody & Qualls filed as Exhibit
5.1 herein).
ITEM 9. UNDERTAKINGS.
(A) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement:
Provided however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remains
unsold at the termination of the offering.
5
<PAGE> 6
(B) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(C) (1) The undersigned Registrant hereby undertakes to
deliver or cause to be delivered with the Prospectus to each person to whom the
Prospectus is sent or given a copy of Registrant's annual report to
shareholders for its last fiscal year, unless such employee otherwise has
received a copy of such report, in which case Registrant shall state in the
Prospectus that it will promptly furnish, without charge, a copy of such report
on written request of the employee. If the last fiscal year of Registrant has
ended within 120 days prior to the use of the Prospectus, the annual report of
Registrant for the preceding fiscal year may be so delivered, but within such
120-day period the annual report for the last fiscal year will be furnished to
each such employee.
(2) The undersigned Registrant hereby undertakes to
transmit or cause to be transmitted to all employees participating in the Plan
who do not otherwise receive such material as shareholders of Registrant, at
the time and in the manner such material is sent to its shareholders, copies of
all reports, proxy statements and other communications distributed to its
shareholders generally.
(D) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Registrant pursuant to the foregoing provisions, or otherwise,
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Registrant
of expenses incurred or paid by a director, officer or controlling person of
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
6
<PAGE> 7
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant, Rexon Incorporated, certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of St. Petersburg,
State of Florida, on the 15th day of May, 1995.
REXON INCORPORATED
By /s/ ROBERT C. GENESI
---------------------------
Robert C. Genesi,
Chairman of the Board
7
<PAGE> 8
POWER OF ATTORNEY
The officers and directors of Rexon Incorporated, whose signatures
appear below, hereby constitute and appoint Robert C. Genesi and Irvin R.
Reuling, and each of them, their true and lawful attorneys and agents, with
full power of substitution, each with power to act alone, to sign and execute
on behalf of the undersigned any amendment or amendments to this Registration
Statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that said attorney and agent, or his or their substitutes, shall do
or cause to be done by virtue hereof.
________________________________________________________
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------------------------- -------------------------------------- ------------------
<S> <C> <C>
/s/ Robert C. Genesi Chairman of the Board, Director and Chief May 15, 1995
------------------------------- Executive Officer
Robert C. Genesi
/s/ Henry Oberle Director and President May 15, 1995
------------------------------
Henry Oberle
/s/ Irvin R. Reuling Director and Chief Financial Officer May 15, 1995
-------------------------------- (Principal Financial and Accounting Officer)
Irvin R. Reuling
__________________________ Director May ___, 1995
Stanley D. Czerwinski
/s/ Charles E. Moran Director May 1, 1995
------------------------------
Charles E. Moran
/s/ Kanwal S. Rekhi Director May 15, 1995
------------------------------
Kanwal S. Rekhi
/s/ Edmund H. Shea, Jr. Director May 5, 1995
---------------------------
Edmund H. Shea, Jr.
</TABLE>
8
<PAGE> 1
EXHIBIT 4.1
REXON INCORPORATED
1992 STOCK OPTION PLAN
1. PURPOSE.
The purpose of this 1992 Stock Option Plan is to assist the Company in
attracting, motivating and retaining qualified key employees and consultants
and to provide a means whereby officers, key employees, consultants and other
persons whose efforts are deemed worthy of encouragement for the benefit of the
Company and its stockholders will be given an opportunity to purchase stock in
the Company.
2. DEFINITIONS.
When used in this Plan, unless the context otherwise requires, the
following definitions shall apply:
(a) "Board of Directors" shall mean the Board of
Directors of the Company as constituted at any time.
(b) "Code" shall mean the Internal Revenue Code, as
presently in effect and as may be hereafter amended from time to time, and any
regulations promulgated thereunder.
(c) "Committee" shall mean the Committee as hereinafter
described in Section 3.
(d) "Company" shall mean REXON INCORPORATED.
(e) "Consultant" shall mean any person who is engaged by
the Company or any of its Subsidiaries to render consulting services.
(f) "Disinterested Members" or "Disinterested Persons"
shall mean persons who satisfy the definition of a disinterested administrator
under Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as
amended.
(g) "Employee" shall mean any person, which may include
an officer or director, employed by the Company or any Subsidiary. The payment
of a director's fee by the Company will not be sufficient to constitute
"employment" by the Company.
(h) "Fair Market Value" shall mean the average of the
highest bid price and lowest ask price of the Company's Common Stock, as
reported by NASDAQ (or, if such shares are then listed on any national
securities exchange or quoted on the NASDAQ National Market System, the closing
price on such exchange or in such system) on the date of or preceding the grant
of the Option, whichever is applicable.
<PAGE> 2
Rexon Incorporated
1992 Stock Option Plan
(i) "Incentive Option" shall mean an Option intended to
meet the requirements of Section 422A of the Code.
(j) "Non-qualified Option" shall mean any Option granted
under the Plan not intended to meet the requirements for an Incentive Option as
defined in the Plan.
(k) "Optionee" shall mean any person to whom an Option
has been granted under the Plan.
(l) "Option" shall mean a stock option issued pursuant to the
Plan.
(m) "Participant" shall mean any person who is eligible to
receive an Option under Section 4 of the Plan.
(n) "Plan" shall mean the 1992 Stock Option Plan of the
Company, as may be amended from time to time as herein provided.
(o) "Share" shall mean a share of Common Stock of the
Company.
(p) "Subsidiary" shall mean any corporation in which the
Company owns, directly or indirectly, stock possessing 50 percent or more of
the total combined voting power of all classes of stock.
3. ADMINISTRATION.
3.1 The Plan shall be administered by the Board of Directors if
each member thereof is a Disinterested Member or, if not, by a Committee which
shall consist of not less than two (2) members of the Board of Directors of the
Company, all of which must be Disinterested Persons, as may be appointed by the
Board of Directors. The Board and the Committee shall have full power and
authority to construe, interpret and administer the Plan, to grant Options
under the Plan and to make determinations which shall be final, conclusive and
binding upon all persons, including but not limited to the Company, the
stockholders and any persons having an interest in any Options. If a member of
the Committee, for any reason, shall cease to serve, the vacancy may be filled
by the Board of Directors. Any member of the Committee may be removed at any
time, with or without cause, by the Board of Directors.
3.2 The Board of Directors or the Committee shall have the
specific authority to reduce the exercise price of outstanding Options if the
fair market value of the shares subject to any such Option is more than twenty
percent (20%) below the existing exercise price of such Option and, in
connection therewith, to maintain or modify the existing, or commence a new,
vesting schedule and, if required, in connection therewith, to reclassify
Incentive Options to Non-qualified Options.
2
<PAGE> 3
Rexon Incorporated
1992 Stock Option Plan
3.3 The determination of the Board of Directors or the Committee
as to any questions which may arise with respect to the interpretation of the
provisions of the Plan and Options granted thereunder shall be final and
conclusive.
3.4 The Board of Directors or the Committee may make such
adjustments to Options granted under the Plan to enable them to comply with the
laws of foreign jurisdictions and/or to make them consistent with options
customarily utilized by companies in foreign jurisdictions.
3.5 The Board of Directors or the Committee may authorize and
establish such rules, regulations and revisions thereof, not inconsistent with
the provisions of the Plan, as it may determine advisable to make the Plan and
Options effective or provide for their administration, and may take such other
action with regard to the Plan and Options as it shall deem desirable to
effectuate their purpose.
4. ELIGIBILITY.
4.1 Options may be granted only to key employees, officers,
consultants or other persons whose efforts are deemed by the Board to be worthy
of encouragement in order to promote the growth and success of the Company. A
director of the Company shall not be eligible to receive an Option under the
Plan unless he is also a full-time employee of, or full-time consultant to, the
Company or of a Subsidiary.
4.2 Notwithstanding anything to the contrary in this Plan, (i) the
grant of any Option under the Plan to any person who shall be an officer but
not a director of the Company at the time of such grant shall be made with the
approval of the Board or the Committee; and (ii) the grant of any Option under
the Plan to any person who at the time of such grant shall be a director (and a
full-time employee) shall be made only with the approval of the Committee.
5. SHARES SUBJECT TO THE PLAN.
5.1 Subject to the provisions of Section 12 (relating to
adjustment upon changes in stock), the shares which may be sold pursuant to
Options granted under the Plan shall not exceed in the aggregate 1,000,000
shares of the Company's authorized Common Stock. If any Options under the Plan
shall for any reason terminate or expire without having been exercised in full,
the shares not purchased under such Options shall be available again for grant
and purchase under the Plan.
5.2 Notwithstanding Section 5.1 above, the maximum aggregate
number of shares subject to the Plan may be automatically increased by the
Board, at its discretion and without stockholder approval, if it determines in
connection with an acquisition of another
3
<PAGE> 4
Rexon Incorporated
1992 Stock Option Plan
business (whether by merger, consolidation or purchase of assets or otherwise)
that it is necessary to grant a substantial number of new options to employees
or other optionees of such acquired business to replace options or other equity
rights previously granted to such persons by the acquired business. The amount
of the additional number of shares to become subject to the Plan shall not
exceed the number of new Options granted in connection with such acquisition.
6. ISSUANCE OF OPTIONS; SPECIAL PROVISION REGARDING INCENTIVE OPTIONS;
SELECTION OF OPTIONEE.
6.1 The number of shares to be optioned to any Participant shall
be determined by the Board of Directors or by the Committee in its sole
discretion; provided, however, that the Company shall not grant Incentive
Options under the Plan to any Optionee to the extent that the aggregate fair
market value of the Common Stock covered by such Incentive Options which are
exercisable for the first time during any calendar year, when combined with the
aggregate fair market value of all shares covered by Incentive Options granted
to such Optionee after December 31, 1986 by the Company, its parent or a
Subsidiary under this or any other plan which are exercisable for the first
time during the same calendar year, exceeds $100,000. Incentive Options shall
be granted only to persons who, on the date of grant, are Employees of the
Company or a parent or a Subsidiary of the Company.
6.2 In determining which Participants should receive Options and
the number of shares subject thereto, the Board of Directors or the Committee
may consider the nature and length of service, compensation levels, past,
present and future contributions to the success of the Company and such other
factors as the Board or Committee may deem relevant. Options may be issued at
different times to the same Participant. The form of Option, including the
terms and provisions thereof, shall be as determined from time to time by the
Board or the Committee, and each Option issued may contain terms and provisions
different from other Options granted to the same or other Option recipients.
An Option Agreement, signed by an officer of the Company (and, if the Committee
deems advisable, by the Participant), shall be issued to each Optionee to whom
an Option is granted.
7. EXERCISE PRICE.
The exercise price for the Shares to be purchased pursuant to the
exercise of any Option shall be fixed by the Board of Directors or the
Committee at the time of the grant of the Option. The exercise price of any
Incentive Option shall not be less than 100% of the Fair Market Value of the
Shares on the date such Option is granted; provided, however, that any
Incentive Option to be granted to a person possessing more than ten percent
(10%) of the total combined voting power or value of all classes of stock of
the
4
<PAGE> 5
Rexon Incorporated
1992 Stock Option Plan
Company or of a Subsidiary shall have an exercise price of not less than one
hundred ten percent (110%) of the Fair Market Value of the Shares on the date
such Option is granted. The exercise price of a Non-qualified Option shall not
be less than 85% of the Fair Market Value of the Shares on the date such Option
is granted. Notwithstanding any of the foregoing, none of such exercise price
limitations shall be applicable to any Options exchanged for other stock
options previously issued by the Company or any Subsidiary on the basis of an
exchange offer made to holders of such previously-issued options based upon the
fair market value thereof.
8. DURATION OF OPTION.
The duration of each Incentive Option granted under the Plan shall be
for a period not to exceed ten (10) years from the date on which it is granted,
as determined by the Board of Directors or the Committee. The duration of each
Non-qualified Option may be infinite or for a specific term, as determined by
the Board of Directors or the Committee at the time of grant. The duration of
any Incentive Option granted under the Plan to any person holding more than ten
percent (10%) of the total combined voting power or value of all classes of
stock of the Company or of a Subsidiary shall not be exercisable after the
expiration of five (5) years from the date such Incentive Option is granted.
9. NON-TRANSFERABILITY OF OPTIONS.
Options shall not be transferrable by the holder thereof otherwise
than (i) by will, (ii) pursuant to the laws of descent and distribution or
(iii) if then permitted by Rule 16b-3 promulgated under the Securities Exchange
Act of 1934, as amended, pursuant to a qualified domestic relations order as
defined by the Code or by Title I of the Employee Retirement Income Security
Act (ERISA), or the rules thereunder; provided, however, that an Optionee may
designate a beneficiary who, upon Optionee's death, may exercise the Option to
the extent permitted in the Plan.
10. EXERCISE OF OPTIONS; PAYMENT OF THE PURCHASE PRICE.
10.1 Except as otherwise provided herein, an Option, after the
issuance thereof, shall be exercisable in accordance with the Plan immediately
or in such installments as may be fixed by the Board of Directors or the
Committee. Notwithstanding anything to the contrary contained herein or in any
Option Agreement, all outstanding unexercised Options shall become fully vested
and may be exercised in whole or in part, at the election of Optionee, as
follows:
(a) Immediately upon a change in the composition of the
Board, not approved by a majority of the directors in office at the time of
such change, which results in a change in "control" of the Company, as such
term is defined in Rule 405 promulgated by the
5
<PAGE> 6
Rexon Incorporated
1992 Stock Option Plan
Securities and Exchange Commission under the Securities Act of 1933, as
amended;
(b) Between thirty (30) and fifteen (15) days prior to
the intended consummation or closing date of any reorganization, merger,
consolidation, liquidation, sale of all or substantially all of the Company's
assets other than a sale or transfer to a Subsidiary of the Company, or similar
transaction pursuant to which the Company is not the surviving corporation;
provided, however, such Options shall not become fully vested or immediately
exercisable if (i) the Board shall determine otherwise, with respect to any or
all holders of Options, but in such event the successor or acquiring
corporation shall substitute for such Option a new stock option containing
terms and conditions which, in the opinion of the Board or Committee, make the
new substituted options comparable, in economic benefit and effect, to the
Options previously held, or (ii) if such transaction is effected by the Company
for the principal purpose of changing the Company's state of incorporation; or
(c) Upon the occurrence of such special circumstances or
events as in the opinion of the Board of Directors or the Committee merits
special consideration.
10.2 An Option shall be exercised by the delivery of a duly signed
notice in writing to such effect, together with the full purchase price.
Payment of the purchase price shall be made in cash or, at the discretion of
the Board of Directors or the Committee as set forth in the Option Agreement or
otherwise, in any other lawful form of consideration, including (i) delivering
outstanding Common Stock of the Company previously owned for six months by the
Optionee (valued at Fair Market Value), or (ii) a promissory note. The terms
of such promissory note shall be determined by the Board of Directors or the
Committee; provided, however, that no part of such note shall be payable later
than five years from the date of purchase of the shares, and the unpaid balance
shall bear interest at any rate determined reasonable or appropriate by the
Board or the Committee, which shall be payable quarterly. If the Board or
Committee permits payment of all or any part of the purchase price by delivery
of a promissory note, the Optionee shall give such security, including but not
limited to the shares purchased, as the Board of Directors or the Committee may
request.
10.3 The Company will, as soon as practicable after the exercise of
an Option, deliver to the person entitled thereto a certificate for the Shares
purchased pursuant to the exercise of the Option; provided, however, that such
certificate may be held by the Company pursuant to Section 10.2 and may also be
held pending receipt of any taxes required to be collected or withheld from
Optionee at the date of exercise of an Option.
6
<PAGE> 7
Rexon Incorporated
1992 Stock Option Plan
10.4 Option Agreements under the Plan may contain a provision to
the effect that all Federal and state taxes required to be withheld or
collected from an Optionee upon exercise of an Option may be satisfied by
either (i) delivering outstanding Common Stock of the Company previously owned
for six (6) months by the Optionee or (ii) the withholding of a sufficient
number of exercised Option shares which, valued at fair market value on the
date of exercise, would be equal to the total withholding obligation of
Optionee; provided, however, that no person who is an "officer" of the Company
as such term is defined in Rule 3b-2 under the Securities Exchange Act of 1934
may elect to satisfy the withholding of Federal and state taxes upon the
exercise of an Option by the withholding of optioned shares unless such
election is made either (a) pursuant to an irrevocable election made by the
Participant at least six months prior to the date that the exercise of the
Option becomes a taxable event or (b) during any of the periods beginning on
the third business day following the date on which the Company issues a release
containing the operating results of a fiscal quarter or fiscal year and ending
on the twelfth business day following such date. Such election to withhold
optioned shares shall be deemed made upon receipt of notice thereof by an
officer of the Company, by mail, personal delivery or by facsimile message, and
shall (unless notice to the contrary is provided to the Company) be operative
for all option exercises which occur following the election.
10.5 Whenever an Optionee exercises an Option by surrendering
already-owned shares to pay all or a portion of the exercise price, if the
Option Agreement so provides or if permitted by the Board or the Committee at
its discretion, at the time of such exercise the Optionee shall receive a new
Option for the purchase of a number of shares equal to the number of shares so
surrendered, and such new option shall have an exercise price of not less than
the fair market value of a share of Company Common Stock on the date of such
surrender and shall vest and become exercisable as may be determined by the
Board.
11. TERMINATION OF EMPLOYMENT OR CONSULTING SERVICES; DEATH OF OPTIONEE.
11.1 If a holder of an Option who is either an employee of or
consultant to the Company shall voluntarily or involuntarily leave the employ
of or cease to render consulting services to the Company or any Subsidiary, the
Option of such holder shall terminate, except that, subject to the limitation
hereafter stated in this Section 11, (i) if his termination results from any
reason other than his death, he may at any time within three months after
termination of his services (or such longer period, not to exceed twelve
months, as may be approved by the Board of Directors of the Committee) exercise
his Option but only to the extent that it was exercisable by him on the date of
termination and only in the absence of the circumstances set forth in Section
11.2 below; (ii)
7
<PAGE> 8
Rexon Incorporated
1992 Stock Option Plan
if he is re-hired or retained as an employee of or consultant to the Company
within eighteen (18) months after his termination, his Option may, if approved
by the Board of Directors or the Committee, be reinstated and again becomes
exercisable in accordance with its original terms (but if his Option was
originally an Incentive Option it shall be reinstated or reissued only as a
Non-qualified Option); and (iii) if he dies while in the employ of or as a
Consultant to the Company or a Subsidiary, or within three months after
termination of his employment or his consulting services, his Option may be
exercised by the person or persons to whom his rights under the Option shall
pass by will or by the laws of descent or distribution, provided such exercise
is effectuated within two (2) years following the date of death. In no event
may an Option be exercised to any extent by anyone after the expiration of its
term.
11.2 If the holder of an Option (i) is terminated due to his
willful refusal to perform the normal duties or assume the reasonable
responsibilities delegated to him as an employee of or consultant to the
Company, (ii) is terminated due to his expropriation of Company property
(including trade secrets or other proprietary rights), or (iii) leaves the
employment of the Company in order to directly (or indirectly, as an employee
or agent of another business or business entity) compete with the Company, the
Board shall have the authority, by notice to the holder of an Option, to
immediately terminate such Option, effective on the date of termination, and
such Option shall no longer be exercisable to any extent whatsoever.
12. ADJUSTMENT UPON CHANGES IN STOCK.
If any change is made in the shares subject to the Plan, or subject to
any Option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, split-up, combination of
shares, exchange of shares, change in corporate structure or otherwise),
appropriate adjustments shall be made by the Board of Directors or the
Committee as to the maximum number of shares subject to the Plan, and the
number of shares and exercise price of shares subject to outstanding Options.
13. ISSUANCE OF SHARES AND COMPLIANCE WITH SECURITIES ACT.
The Company may postpone the issuance and delivery of Shares upon any
exercise of an Option until (a) the admission of such Shares to listing on any
stock exchange on which Shares of the Company of the same class are then listed
and (b) either the completion of such registration or other qualification of
such Shares under any state or Federal law, rule or regulation as the Company
shall determine to be necessary or advisable or the completion of all
procedures necessary to obtain exemptions therefrom. Any person exercising an
Option shall make such representations and furnish such information as may, in
the opinion of counsel for the Company, be appropriate to permit the Company to
8
<PAGE> 9
Rexon Incorporated
1992 Stock Option Plan
issue the Shares in compliance with the provisions of the Securities Act of
1933, as amended, and any state statutes which may be applicable.
14. AMENDMENT OF THE PLAN.
Except as hereinafter provided, the Board of Directors or the
Committee may at any time withdraw or from time to time amend the Plan and the
terms and conditions of any Options not theretofore issued, and the Board of
Directors or the Committee, with the consent of the affected holder of an
Option, may at any time withdraw or from time to time amend the Plan and the
terms and conditions of such Options as have been theretofore granted.
Notwithstanding the foregoing, any amendment to the Plan by the Board of
Directors or the Committee which would (i) materially increase the benefits
accruing to Participants under the Plan; (ii) materially increase the number of
securities which may be issued under the Plan or (iii) materially modify the
requirements as to the eligibility for participation in the Plan, shall be
subject to the approval of the stockholders of the Company either prior to or
within one year after such amendment.
15. NO EMPLOYMENT AGREEMENT.
The grant of an Option under the Plan to an employee of the Company
shall not be deemed to create any agreement to employ the Optionee for any
period of time, it being understood that employment is strictly "at will" in
the absence of any written agreement to the contrary and such person may be
terminated by the Company at any time, with or without cause.
16. EFFECTIVE DATE OF THE PLAN.
The Plan was adopted by the Board of Directors of the Company on July
22, 1992, and is effective on such date, subject to stockholder approval.
Options may be granted under the Plan immediately, but shall be subject to
stockholder approval of the Plan. However, if stockholder approval is not
obtained for the Plan by June 30, 1993, the Plan may nevertheless be
implemented with the approval of the Board of Directors of the Company and any
outstanding options issued subject to stockholder approval shall remain
outstanding and effective as of the date originally granted by the Board of
Directors.
9
<PAGE> 1
EXHIBIT 4.2
AMENDMENT TO
REXON INCORPORATED
1992 STOCK OPTION PLAN
The 1992 Stock Option Plan of Rexon Incorporated (the "Plan") is
hereby amended as follows:
1. The first sentence of Subsection 5.1 is hereby deleted in its
entirety and the following sentence is substituted in its place:
"Subject to the provisions of Section 12 (relating to adjustments upon
changes in stock), the shares which may be sold pursuant to options
granted under the Plan shall not exceed in the aggregate 1,700,000
shares of the Company's authorized Common Stock."
2. Subsection 11.1 of the Plan is hereby deleted in its entirety
and the following Subsection is substituted in its place:
"11.1 If a holder of an Option who is either an employee of or
consultant to the Company shall voluntarily or involuntarily leave the
employ of or cease to render consulting services to the Company or any
Subsidiary, the Option of such holder shall terminate, except that,
subject to the limitation hereafter stated in this Section 11, (i) if
his termination results from any reason other than his death, he may
at any time within three months after termination of his services (or
such longer period, not to exceed five (5) years, as may be approved
by the Board of Directors of the Committee) exercise his Option but
only to the extent that it was exercisable by him on the date of
termination and only in the absence of the circumstances set forth in
Section 11.2 below; (ii) if he is re-hired or retained as an employee
of or consultant to the Company within eighteen (18) months after his
termination, his Option may, if approved by the Board of Directors or
the Committee, be reinstated and again becomes exercisable in
accordance with its original terms (but if his Option was originally
an Incentive Option it shall be reinstated or reissued only as a
Non-qualified Option); and (iii) if he dies while in the employ of or
as a Consultant to the Company or a Subsidiary, or within three months
after termination of his employment or his consulting services, his
Option may be exercised by the person or persons to whom his rights
under the Option shall pass by will or by the laws of descent or
distribution, provided such exercise is effectuated within two (2)
years following the date of
<PAGE> 2
Amendment to Rexon Incorporated
1992 Stock Option Plan
death. In no event may an Option be exercised to any extent by anyone
after the expiration of its term."
3. A new sentence is hereby added to the end of Subsection 3.1
and shall read in full as follows:
"Notwithstanding anything to the contrary contained herein, the Chief
Executive Officer of the Company shall have the sole and exclusive
discretionary authority to grant stock options on behalf of the
Company and the Board of Directors to newly-hired employees of the
Company and any of its subsidiaries (other than persons who are hired
as officers and would be subject to the reporting requirements under
Section 16 of the Securities Exchange Act of 1934); provided, however,
that the CEO shall not grant options under this authority to any one
new employee in excess of 25,000 shares nor in any fiscal quarter in
excess of 100,000 shares in the aggregate and, provided further, that
options granted to new hires by the CEO pursuant to this authority
shall be granted within the first thirty (30) days following the date
of employment with the Company."
4. In all other respects, except as expressly amended herein, the
Plan is hereby ratified and confirmed in its entirety.
The amendments to the Plan herein set forth have been approved by the
Board of Directors and are deemed effective as of November 4, 1993, except as
to the amendments to Subsection 5.1 and Subsection 11.1, which shall become
effective upon shareholder approval.
BY ORDER OF THE BOARD OF DIRECTORS:
By /s/ IRVIN R. REULING
-------------------------------
Irvin R. Reuling
2
<PAGE> 1
EXHIBIT 5.1
[Letterhead]
R-1863-4.1
May 18, 1995
Rexon Incorporated
1334 Park View Avenue, Suite 200
Manhattan Beach, CA 90266
Gentlemen:
We are acting as counsel for Rexon Incorporated (the "Company") in connection
with the preparation and filing of the Company's Registration Statement on Form
S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for the
registration under the Act of 1,280,500 shares of the Company's Common Stock
(the "Shares"), which may be issued pursuant to the exercise of options granted
under the Company's 1992 Stock Option Plan.
We are familiar with the proceedings taken by the Company relating to the
authorization and issuance of the Shares in the manner set forth in the
Registration Statement. We have examined and relied upon the originals, or
copies, of such corporate records, certificates, documents and other
instruments, and reviewed such questions of law as we have considered necessary
and appropriate in order to enable us to render the opinion expressed below,
and on the basis of such, we hereby advise you as follows:
Subject to the taking of certain proceedings, to the extent required, in
certain states which may have jurisdiction with respect thereto, the Shares,
when issued and sold in the manner set forth in the Registration Statement
and in the manner provided in the 1992 Stock Option Plan pursuant to which
such issuance and sale will be undertaken, will be legally and validly issued
and outstanding, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
GRAVEN PERRY BLOCK BRODY & QUALLS
A PROFESSIONAL CORPORATION
By /s/ KRISTON D. QUALLS
-----------------------------
Kriston D. Qualls
KDQ:llr
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Rexon Incorporated on Form S-8 of our report dated December 23, 1994, appearing
in the Annual Report on Form 10-K of Rexon Incorporated for the year ended
October 2, 1994.
DELOITTE & TOUCHE LLP
Los Angeles, California
May 15, 1995
